Rail Corporation New South Wales v Australian Municipal, Administrative, Clerical and Services Union New South Wales and Act (Services) Branch
[2011] FWA 2785
•19 MAY 2011
[2011] FWA 2785 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Rail Corporation New South Wales
v
Australian Municipal, Administrative, Clerical and Services Union - New South Wales and ACT (Services) Branch; Australian Rail, and Tram and Bus Industry Union - New South Wales Branch
(C2010/6009)
Rail industry | |
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 19 MAY 2011 |
Rostering of transit officers for special events.
[1] This decision concerns a dispute between Rail Corporation New South Wales (RailCorp), the Australian Services Union (ASU) and the Rail, Tram and Bus Industry Union (RTBU) (‘the unions’) about the application of the last paragraph of Clause 4 of the RailCorp Enterprise Agreement 2010 (the 2010 agreement). That clause provides as follows:
‘Working / Period Roster is a roster that operates on a weekly / fortnightly / four week cycle basis as defined in functional areas. All known actual work, including overtime and RDOs / ADOs, is displayed in the working / period roster. Any RDOs / ADOs shown will reflect the relevant Master Roster and may be varied in accordance with the current rostering arrangements applicable to the functional area or by agreement with the affected Employee(s).’
[2] Also relevant to the dispute is Clause 30, which states:
‘30. ROSTERING PRINCIPLES (SHIFT WORKERS)
30.1. This clause excludes Infrastructure Workers (IWs) and team managers classified in accordance with the Infrastructure Division (IW) classification structure.
30.2. Introduction
(a) All rosters will be developed in accordance with the Employer’s core rostering principles set out in Sub-clause 30.3 and be subject to local level consultation (in accordance with Sub-clause 8.3) prior to implementation.
(b) The Employer shall ensure that all rosters are:
i. developed in accordance with any laws governing the number of consecutive hours, days or shifts that may be worked; and
ii. compliant with relevant provisions of this Agreement concerning number of shifts to be worked, intervals between shifts, lengths of shifts, consecutive days off, right to notice periods concerning duty.
30.3. Core Rostering Principles
All master rosters shall be developed and implemented in accordance with the following
principles:
i. the health and safety of Employees;
ii. fatigue management obligations;
iii. operational and business requirements;
iv. duty of care obligations;
v. a fair and equitable distribution of the rostered work between Employees of like classification;
vi. local level consultation;
vii. patterns of working which assist quality of life considerations; and
viii. reasonable periods of notice of change to rostered working.
30.4 Notice of Change of Rosters
(a) Master Roster
The notice required for changes to the Master Roster will be 14 days unless otherwise agreed by the relevant parties to this Agreement.
(b) Period Roster and Daily Roster
The notice required for changes to the Period or Daily Roster shall be determined within functional units having regard to the Employer’s core rostering principles.
30.5. Consultation
(a) Variations in operational and business requirements for rostered work across organisational business units may require the variation of rosters.
(b) Variations to roster will be subject to local level consultation prior to implementation and be developed and implemented in accordance with core rostering principles of this Agreement in accordance with Sub-clause 30.3. Relevant unions and affected Employees will be advised prior to implementation.
(c) Where a rostering committee has been formed, management will consult with that committee. At locations where no rostering committee exists, consultation will occur in accordance with Clause 8 (Consultative Process).
(d) In the event of any dispute concerning the review, development or implementation of rosters, the provisions of the DSP shall apply.
30.6. Exchange of Shifts
Employees may mutually agree to exchange shifts, subject to approval by management.’
[3] On 22 December 2010, RailCorp filed an application for FWA to deal with the dispute in accordance with the dispute settlement procedure in the 2010 agreement. The dispute is confined to transit officers in RailCorp’s security division. In particular it concerns the rostering of transit officers to work on ‘special event days.’ It initially arose in relation to rostering transit officers for New Years Eve 2010, and then the Mardi Gras in 2011. It was dealt with by way of conferences and hearings dealing with those particular days by Commissioner Harrison on 24 December 2010 and 25 February 2011. While the immediate issues of concern relating to those particular special events were resolved, it was agreed by the parties that there was an underlying dispute which needed to be arbitrated. The matter was subsequently allocated to me. A directions hearing was held on 23 March 2011. The parties then filed written outlines of their arguments, and witness statements. A hearing was conducted on 11 May 2011.
[4] At the hearing, RailCorp was represented by Mr D Lloyd, of Blake Dawson. The unions were represented by Ms K Presdee of Slater & Gordon Lawyers.
The evidence
[5] The following witnesses gave evidence on behalf of RailCorp:
- Mr A Kececi (principal employee relations officer); and
- Mr P Linsley (manager security operations).
[6] The following witnesses gave evidence on behalf of the unions:
- Mr M Morey (deputy assistant secretary, Unions NSW); and
- Mr J Schultz (transit officer).
[7] Mr Kececi’s evidence indicated that the current wording of the last paragraph in Clause 4 has its origin in the negotiations for the Rail Corporation New South Wales Union Collective Agreement 2008 (‘the 2008 agreement’). The 2008 agreement was preceded by the Rail Corporation New South Wales, Rail Infrastructure Corporation, and State Rail Authority of New South Wales Enterprise Agreement 2005 (‘the 2005 agreement’). The 2005 agreement contained definitions of ‘Accrued Day Off (ADO)’ and ‘Working/Period Roster’ in different terms to the 2008 agreement. The 2005 agreement provided as follows:
‘Accrued Day Off (ADO) is the day not being a holiday that an employee has off duty when working in accordance with an average weekly hours system.
Working/Period Roster is a roster that operates on a weekly/fortnightly/four week cycle basis as defined in functional areas. All known actual work, including overtime, is displayed in the working/period roster.’
[8] Mr Kececi gave evidence of an industrial dispute he was directly involved with in 2006 concerning RailCorp’s rostering practices when changing the ADOs/RDOs (‘book off days’) of transit officers. The eventual resolution to that dispute was contained in a letter from the Group General Manager, Service Delivery, Mr Rob Mason, to the RTBU on 22 May 2006. This letter included the following:
‘RailCorp has given consideration to the matters raised and on the basis that the Security Division operates on a 28 day period roster that is displayed 14 days in advance, RailCorp is prepared to make the following “without prejudice” offer in an endeavour to resolve the dispute:
1. Where a Transit Officer is advised of a requirement to work on a book off day 14 days in advance, the Transit Officer will be provided with a choice of an alternate book off day in the roster period;
2. Where 14 days notice of a requirement to work on a book off day is not provided, and the Transit Officer is directed to work on a book off day, overtime will be paid.’ 1
[9] This offer was subsequently accepted by the RTBU and the ASU. It was then confirmed in a communication to all transit officers from Paul Passmore, General Manager, Security Division. 2
[10] Mr Kececi’s evidence was that he was directly involved in the negotiations for the 2008 agreement that resulted in the changed definition of ‘Working/Period Roster’ from that in the 2005 agreement. During those negotiations the combined rail unions sought to change the definition of Working/Period Roster to require all book off days set out in the Master Roster to be reflected in the Working/Period Roster, unless agreement was reached between RailCorp and an individual employee.
[11] RailCorp management rejected the unions’ proposed change at least in part because it would have restricted the Security Division’s ability to change a transit officer’s book off day so as to meet the operational requirements of special events unless agreement was reached with the employee. A compromise was reached which included the inclusion of a new sentence expressly preserving relevant rostering arrangements in functional areas. This is in effect the third sentence now found in the last paragraph of Clause 4 of the 2010 agreement. Mr Kececi noted the implication of this change.
‘In other words, the agreement of affected employees was not required if the relevant rostering arrangements in a functional area allowed RailCorp to make a rostering change.’ 3
[12] This version of events leading to the negotiation of the clause in the 2008 agreement was broadly consistent with the evidence given by Mr Morey, and was not seriously challenged by the unions. 4
[13] During negotiations for the 2010 agreement, the unions again sought a change to the definition of ‘Working/Period Roster’ which would restricted RailCorp’s ability to change an employee’s book off day unless there was agreement with the employee concerned. The change was opposed by RailCorp management and the clause included in the 2010 agreement was essentially the same as that in the 2008 agreement.
[14] Mr Linsley gave evidence of how the Master Roster and Working/Period Roster are drawn up in the Security Division. His evidence was that:
‘Whilst the Working/Period Roster will generally follow the Master Roster, it may depart from it because of:
a) Changes in shift times (RailCorp provides a minimum of 24 hours notice of a change in shift start times, however subject to business and operational constraints endeavours to provide 72 hours notice); or
b) Variations in book off days (ie ADOs or RDOs) to meet the operational requirements of Special Events ie requiring an employee to work on what would have been a book off day (on the master Roster) and instead giving the employee a new book off day during the roster period; or
c) Court attendances (for example, if someone appeals an infringement notice issued to them by a Transit Officer, the Transit Officer must attend a Local Court hearing and give evidence); or
d) Other reasons, such as training, or leave.’ 5
[15] According to Mr Linsley’s evidence:
‘Changes to Working/Period Rosters to cover for Special Events are rare, eg a few times a year, and are usually associated with events such as New Years Eve, the Mardi Gras, the NRL Grand Final, possibly Australia Day and the Big Day Out; and other significant one off events, examples in recent years being APEC, and World Youth Day. This number is kept to a minimum so that Transit Officers’ RDOs/ADOs are not regularly changed, causing a disruption to their lifestyle.’ 6
[16] Mr Linley outlined the process when varying transit officers’ book off days:
‘The practice in the Security Division is to provide Transit Officers with a minimum of 14 days notice of a change in RDO/ADO.
The management team will review the roster and determine which teams’ RDOs/ADOs will be moved and where they will be moved to. This decision is based on the patterns of shifts worked by the team rostered off before and after the event (eg teams finishing 5 night shifts will not be changed as they need to have an RDO to manage fatigue).
Where an RDO/ADO is changed, efforts are made, in consultation with the employee to provide a choice of alternative RDO/ADO in the same roster period.
The affected officers are also emailed and advised of the change to their Working/ Period Roster and asked to refer to the updated roster.
Transit Officers can make a representation to the Regional Operations Manager if they wish to remain on the RDO/ADO designated on the Master Roster shift because of compelling personal circumstances. These requests are reviewed by the Regional Operations Manager who will then make a determination on a case by case basis.’ 7
[17] During his oral evidence, Mr Linsley stated that consultation in relation to special events where book off days might be changed would usually occur ‘within the four weeks from the event.’ 8
[18] Mr Schultz gave evidence that, to the best of his knowledge, consultation with individual employees, for example in relation to the provision of a choice of alternative book off day, happens rarely, if at all. 9 He also stated that transit officers are rarely if ever notified by email of a change to the Working/Period Roster.
‘Most changes to the roster are notified verbally, with a direction to check the roster. Previously Transit Officers had been notified of changes by text message.’
[19] Mr Schultz also indicated that he could not recall any consultation with the union about proposed changes to the Working/Period Roster prior to its publication, until this year’s Mardi Gras 10.
Consideration
[20] Properly constructed, the last paragraph of Clause 4 of the 2010 agreement provides that book off days in the Working/Period Roster must reflect those in the Master Roster unless one of two circumstances exist:
1. There is agreement with the affected employee(s); or
2. There was - at the time the 2010 agreement was entered into - a rostering arrangement applicable to the functional area in question that allowed for book off days to be varied from those in the Master Roster.
[21] I am satisfied, based on Mr Kececi’s and Mr Linsley’s evidence, that there was at the time the 2010 agreement was entered into, a rostering arrangement for RailCorp to vary book off days in the Working/Period Roster for transit officers from those contained in the Master Roster. To be clear this means that book off days in the Working/Period roster can vary for transit officers from those in the Master Roster without the agreement of the employee(s).
[22] This does not mean that RailCorp has carte blanche in the way that it draws up the Working/Period Roster. Under the terms of the 2010 agreement, RailCorp is required to ensure that the Working/Period Roster - like all rosters - is developed in accordance with the core rostering principles set out in sub-clause 30.3 of the 2010 agreement.
[23] I have considered the rostering arrangements that have been applied to transit officers in relation to book off days since the resolution of the dispute since 2006. In particular, based on Mr Linsley’s evidence, these arrangements are that where a transit officer is advised of a requirement to work on a book off day 14 days in advance, the transit officer will be provided with a choice of an alternate book off day in the roster period; and that where 14 days notice of a requirement to work on a book off day is not provided, and the transit officer is directed to work on a book off day, overtime will be paid. I consider that this approach is, broadly speaking, consistent with the core rostering principles. I would however add the following to ensure that the actual practice remains consistent with those principles.
[24] To be consistent with the core rostering principles, there needs to be effective consultation with the unions in relation to the Working/Period Roster when it might involve a change to book off days to accommodate a special event well before the roster is finalised. Employees should also be given a genuine opportunity to either to seek to retain their original book off day, or to have an alternative book off day than that proposed by management. A reasonable timetable in relation to special events that might need a change to book off days would be along the following lines:
1. Management meet with union representatives at least four weeks out from the special event to present its proposed roster strategy;
2. The unions have seven days within which to provide their response;
3. Management publish the roster at least seven days before it must be finalised in order to give employees at least seven days either to seek an exemption from the change to their book off day or to have an alternative book off day to that proposed in the roster. Employees need to be notified that they have the opportunity to seek these changes to the proposed roster.
[25] This timetable is suggested as a guideline. It is recognised that there may be some circumstances where it may be impractical. Management must give serious consideration to any proposals put forward by the unions, but management is not obliged to accept those proposals, if they have reasonable grounds not to do so. Likewise, management must give serious consideration to any requests by individuals to alter their proposed book off day; it does not mean that management must agree to such requests, if they have reasonable grounds not to do so. In both cases, the core rostering principles provide the relevant criteria against which decisions should be made.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr D Lloyd for RailCorp
Ms K Presdee for the Australian Municipal, Administrative, Clerical and Services Union; and the Australian, Rail, Tram and Bus Industry Union
Hearing details:
SYDNEY
2010
23 March
11 May
1 Exhibit R3, p.16
2 Exhibit R3 p.24
3 Exhibit R3, paragraph 12
4 Exhibit U2, paragraphs 4-8
5 Exhibit R1, paragraph 25
6 Exhibit R1, paragraph 31
7 Exhibit R1, paragraphs32-6
8 PN327
9 Exhibit U1, paragraph 23
10 Exhibit U1, paragraph 17
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